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Kang v Bishop

Kang v Bishop

Case [2018] NSWSC 46 9 February 2018

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Supreme Court

New South Wales

Medium Neutral Citation: Kang v Bishop & Ors [2018] NSWSC 46
Hearing dates: 18 October 2017
Decision date: 09 February 2018
Jurisdiction: Common Law
Before: N Adams J
Decision:
(1) The plaintiff’s notice of motion dated 2 August 2017 is dismissed.
(2) The plaintiff is to pay the defendant’s costs of the motion.

Catchwords: ADMINISTRATIVE LAW – motion to remove proceedings to Court of Appeal in judicial review proceedings under UCPR r 1.21(1) - discretion to transfer proceedings – relevant factors in exercise of discretion
Legislation Cited: Civil Procedure Act 2005 (NSW)
Competition and Consumer Act 2010 (Cth)
Crimes Act 1900 (NSW)
Crimes (Appeal and Review) Act 2001 (NSW)
Criminal Procedure Act 1986 (NSW)
Fair Trading Act 1987 (NSW)
Government Sector Employment Act 2013 (NSW)
Interpretation Act 1987 (NSW)
Supreme Court Act 1970 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Allandale Blue Metal Pty Ltd v Roads and Maritime Services (2013) 195 LGERA 182; [2013] NSWCA 103
AVS Group of Companies v Commissioner of Police [2010] NSWSC 659
Griffin Energy Group Pty Ltd (subject to a Deed of Company Arrangement) v Laughland [2016] NSWSC 1057
Idoport Pty Limited v National Australia Bank Limited (15) [2000] NSWSC 1215
Kew v Commissioner for Fair Trading [2005] NSWSC 1100
Kew v Commissioner of Fair Trading [2007] NSWSC 394
Sasterawan v Morris (2007) 69 NSWLR 547; [2007] NSWCCA 185
Stewart v Ronalds [2009] NSWSC 455
Category: Principal judgment
Parties: Edward Kang (Plaintiff)
Jay Bishop (First Defendant)
Secretary, Department of Finance, Services and Innovation (Second Defendant)
Local Court of NSW (Third Defendant, submitting appearance)
Representation:
Counsel:
Ms R Seiden SC with Mr P Johnson (Plaintiff)
Ms T Phillips (First and Second Defendants)
Solicitors:
Jackson & Associates (Plaintiff)
NSW Crown Solicitor (First, Second and Third Defendants)

File Number(s): 2017/93130
Publication restriction: Nil

Judgment

This interlocutory application concerns whether proceedings for judicial review in the Common Law Division of this Court ought to be removed into the Court of Appeal under Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) r 1.21(1). Edward Kang (the plaintiff) is the applicant on the motion.
On 29 November 2016, the plaintiff was found guilty by Magistrate Keady of a number of offences contrary to ss 192E and 192G of the Crimes Act1900 (NSW). His convictions arose out of his alleged deceptive conduct as a migration agent. Eleven separate foreign nationals had engaged Mr Kang, through his company, to obtain a visa for them to work in Australia. They each alleged that he had fraudulently misrepresented to them that his company would obtain sponsored employment and a visa for them upon the provision of a significant fee.
The prosecution was brought by Jay Bishop. He is a public servant employed as a senior investigator within NSW Fair Trading, which is a Division of the Department of Finance, Services and Innovation. Mr Bishop is the first defendant in these proceedings.
On 27 March 2017, at a time after he was convicted but…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kang v Bishop

Details

AGLC: Kang v Bishop [2018] NSWSC 46
Case: [2018] NSWSC 46
Decision Date: 09 February 2018

CaseChat Overview and Summary

The case of Kang v Bishop involved the applicant, Kang, seeking to have the proceedings moved from the Supreme Court to the Court of Appeal. Kang's action was a judicial review application aimed at challenging the administrative decisions made by Bishop, who was the respondent. The Supreme Court was tasked with determining whether the proceedings should be transferred under the Uniform Civil Procedure Rules rule 1.21(1).

The primary legal issue before the court was whether the discretion to transfer proceedings to the Court of Appeal should be exercised. This involved a consideration of the relevant factors that ought to be taken into account when exercising this discretion. The court needed to assess the appropriateness of transferring the proceedings, given the nature and complexity of the administrative law issues at stake, and the potential impact on the efficiency and fairness of the judicial process.

In delivering the judgment, the court carefully examined the factors relevant to the exercise of the discretion. It considered the importance of the legal issues involved, the likelihood of an appeal, and the potential for the proceedings to be more appropriately handled by the Court of Appeal. The court also weighed the interests of justice and the need to ensure that the proceedings were conducted in the most efficient and effective manner possible. Ultimately, the court determined that the transfer was warranted, and thus granted the motion. The decision highlighted the importance of a balanced approach in considering the transfer of judicial review proceedings.

Orders